OT: Supreme Court Keeps Copyright Protections

[peter noble]

By GINA HOLLAND, Associated Press Writer

WASHINGTON - The Supreme Court on Wednesday upheld lengthier copyrights protecting the profits of songs, books and cartoon characters — a huge victory for Disney and other companies.

The 7-2 ruling, while not unexpected, was a blow to Internet publishers and others who wanted to make old books available online and use the likenesses of a Mickey Mouse cartoon and other old creations without paying high royalties.

Hundreds of thousands of books, movies and songs were close to being released into the public domain when Congress extended the copyright by 20 years in 1998.

Justices said the copyright extension, named for the late Rep. Sonny Bono, R-Calif., was neither unconstitutional overreaching by Congress, nor a violation of constitutional free-speech rights.

The Constitution "gives Congress wide leeway to prescribe `limited times' for copyright protection and allows Congress to secure the same level and duration of protection for all copyright holders, present and future," Justice Ruth Bader Ginsburg (news - web sites) said from the bench.

A contrary ruling would have cost entertainment giants like The Walt Disney Co. and AOL Time Warner Inc. hundreds of millions of dollars. AOL Time Warner had said that would threaten copyrights for such movies as "Casablanca," "The Wizard of Oz" and "Gone With the Wind."

Also at risk of expiration was protection for the version of Mickey Mouse portrayed in Disney's earliest films, such as 1928's "Steamboat Willie."

The ruling will affect movie studios and heirs of authors and composers. It will also affect small music publishers, orchestras and church choirs that must pay royalties to perform some pieces.

The Bush administration defended the extension, telling the court that while justices may personally disagree with the latest extension, Congress had the authority to pass it.

Congress passed the copyright law after heavy lobbying from companies with lucrative copyrights.

The Constitution allows Congress to give authors and inventors the exclusive right to their works for a "limited" time, and during oral arguments in the case in October some justices seemed to question whether the extension fit that requirements.

The majority in Wednesday's ruling, however, ultimately found that Congress was within its rights.

"We find that the (extension) is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be," the court said.

Congress has repeatedly lengthened the terms of copyrights over the years. Copyrights lasted only 14 years in 1790. With the challenged 1998 extension, the period is now 70 years after the death of the creator. Works owned by corporations are now protected for 95 years.

Eric Eldred challenged the copyright extension, which he said unfairly limits what he can make available on a public web library he runs.

The extension "protects authors' original expression from unrestricted exploitation," Ginsburg wrote in rejecting Eldred's free-speech claims. "Protection of that order does not raise the free speech concerns present when government compels or burdens the communication of particular facts or ideas."

Justices John Paul Stevens and Stephen Breyer disagreed with their colleagues.

Stevens wrote that the court was "failing to protect the public interest in free access to the products of inventive and artistic genius."

[peter noble]

repcisg, havoc315 care to comment?

Peter

[havoc315]

I've been anxiously awaiting this ruling. When the law was first being debated about 6 years ago, I wrote an extensive paper discussing it... Essentially discussing what a HORRIBLE law it was.

Ironically, the first I heard the decision was from you, right here. I'm going to have to read the entire decision, but it is an AWFUL ruling. Personally, I think it's unconstitutional, but that's a borderline argument. Congress definitely should never have passed it. It's essentially the product of tons of lobbying by the rich guys, without any large organized opposition.

Here is why it's bad: The whole point of a copyright is to give artists incentives to create new works. WHy should I write and publish a new book, if anybody can just copy it, and thus I would never make a profit?

Accordingly, a monopoly right is vested to the creator of the work, for a "limited time."
There is great wisdom to the concept of the limited time monopoly. It is the principle that art builds upon itself, as artists draw from the rich public domain. Eventually, copyrights expire, and it frees the material to be used by anyone, in any manner. That's why you see so many Shakespeare adaptions, performations, variations, etc. The works are not under copyright, so anyone can exploit it. (It's also the reason you can get a leatherbound, complete works of Shakespeare for under twenty dollars).

Now, in theory, a 95 year copyright provides greater incentive than a 75 year long copyright. But mathematically, this increased incentive is infantismal. (My paper worked out the math). Most creations lose their value long before the expiration of 75 years. (Example, who is still going to be using Windows 3.1 in 75 years? Woops, it's already dead... but Bill Gates now gets exclusive rights to it for 95 years). For those works that are still valuable after 75 years, (those classic movies or timeless authors), the value-added of the extram 20 years, when reduced for present value, is still extremely small (something like 3%).

So is there really any extra incentive to create works? Especially when the incentive comes LONG after the death of the creator? Imagine Stephen King saying, "I don't think I will publish this book, since I only get exclusive rights to it for 50 years after my death, instead of 70 years after my death."

But let's put all that aside. That's not even the real evil of the law. The real evil is that it affects works ALREADY CREATED.

Walt Disney created Steamboat Willie over 70 years ago. How does extending the pre-existing copyright by another 20 years serve any purpose at all??? The only entity helped is Walt Disney Corp. It's not as if the extension gives any extra incentive... That's impossible, because the work already exists!

I wish I could think of an analogy, but the law is so ridiculous that I can't. It's essentially asking for the public to re-pay for a product, for no reason whatsoever.

OK, here is the analogy: You buy a house, you enter a contract with a bank, called a mortgage. Under the terms of the mortgage, you have to make payments for 30 years, and then the house becomes yours, free and clear.

You're just about to enter the 30th year of the mortgage. The bank runs to congress and gets congress to pass a law, that requires you to keep making mortgage payments for an additional 10 years!

Sounds ridiculously unfair???? Well, so is the copyright law. Copyright owners entered a contract with the public at whole.... I will create this art, but you will give me a monopoly for 75 years. Woops... the 75 was getting close, so let's change it to 95!

Give me a break.

[repcisg]

What this simply means is a continuation without the support and approval of the original authors and or their heirs is simply not possible.

For the studios only two paths are open, 1) remake/reimagine or do a prequel that redefines the foundation of the story then do new stories based on that new foundation.

In the late 1980’s and early 1990’s there were many discussions covering how the emerging digital technologies would be used. One factor became apparent, as the law then stood studios were free to take an old show, digitize it, enhance it and sell it or show it as a new product while paying miniscule royalties to the artists that had created it. Old studio film libraries suddenly became worth Billions of dollars. The Sonny Bono law was designed to stop this and force the studios to share the profits with the original artists.

So unless you can get at least the major contributors to the original show to agree on a new script, a continuation is not possible.

My five rules still hold, for prequel or reimagine:

1) If the element is clearly derived from A Glen Larson source – it cannot be used.

2) If the original source of the element cannot be determined – it cannot be used.

3) If the original source of the element can be documented as originating from a Universal source – it can be used.

4) If the original source of the element can be documented as coming from several external sources and not used by Glen Larson in any of his productions – it can be used.

5) If the element is entirely new – it can be used.

[havoc315]

Originally posted by repcisg
What this simply means is a continuation without the support and approval of the original authors and or their heirs is simply not possible.

For the studios only two paths are open, 1) remake/reimagine or do a prequel that redefines the foundation of the story then do new stories based on that new foundation.

In the late 1980’s and early 1990’s there were many discussions covering how the emerging digital technologies would be used. One factor became apparent, as the law then stood studios were free to take an old show, digitize it, enhance it and sell it or show it as a new product while paying miniscule royalties to the artists that had created it. Old studio film libraries suddenly became worth Billions of dollars. The Sonny Bono law was designed to stop this and force the studios to share the profits with the original artists.

So unless you can get at least the major contributors to the original show to agree on a new script, a continuation is not possible.

My five rules still hold, for prequel or reimagine:

1) If the element is clearly derived from A Glen Larson source – it cannot be used.

2) If the original source of the element cannot be determined – it cannot be used.

3) If the original source of the element can be documented as originating from a Universal source – it can be used.

4) If the original source of the element can be documented as coming from several external sources and not used by Glen Larson in any of his productions – it can be used.

5) If the element is entirely new – it can be used.

No offense, but you have misinterpretted copyright law. The 1998 "Sonny Bono" law, as it is known, does not *increase* royalties for existing products, it does not make copyrights any stronger, it only increases the length of time for which the copyright was valid. Take for example, a television show from the 1970's, it is completely and entirely unaffected by the change in law as of this time, because it would be under copyright regardless.

As to your logical about the application to BSG, it is also incorrect. NO derivative work (except for those narrowly fitting within the fair use doctrine such as a satire) could be made without the permission of the original coyright owner. That means no remake, no continuation, no re-imagining, no remake. West Side Story is a re-imagining of Romeo and Juliet, but if Shakespeare's coprights were still valid, then West Side Story would be an illegal infringement of the copyright.

Upon my information and belief, Universal is the sole copyright owner to the Battlestar Galactica properties. (There may be additional copyright holders of the music, I'm not sure). As such, Universal has exclusive control over BSG until 2073 (Under the old law, it would have been until 2053). After 2073, unless congress extends it again, any person can make a remake, a continuation, a prequal, or anything else they see fit. But for now, Universal can do anything they want, whether remake, continuation, or comic book. (To list just a few examples).

As a further example, I know Richard Hatch has written several BSG books... I assure you he had to pay royalties/licensing to Universal.

[peter noble]

From www.newsrama.com ( a comic book site)

by Michael Lovitz

Intellectual Property - copyrights, trademarks and patents. Many know the words, but not everyone understands these rights, and the differences between them. I’m here to help.


COPYRIGHT EXTENSION UPHELD

As was reported on Wednesday, the Supreme Court in a 7-2 ruling upheld the constitutionality of a controversial copyright extension law which passed in 1998, the Sonny Bono Copyright Extension Act (the “CTEA”). But what impact, if any, does this have on the comic book industry?

There has been much speculation and guesswork on the Boards regarding this ruling and its impact, as well as overall confusion amongst the non-lawyers. This article will hopefully explain the ruling, give a brief understanding answer and address what it means for the comic book and related entertainment industries.

First, a brief explanation of the Supreme Court’s ruling. The case was brought by Eric Eldred, who runs an online archive of published works. Eldred sought to overturn the CTEA, which became law in 1998, set the term of copyright protection to be the author’s life plus 70 years. For anonymous works, pseudonymous works, or works made for hire, the term would be the shorter of 95 years from first publication of the work, or 120 years from the year the work was created. The CTEA also extended the length of copyright protection by twenty years for those works which were, as of January 1, 1998, still protected by copyright.

The primary justification for the change in the length of protection was ensure that the length of copyright protection offered to United States authors matched the term of protection granted by the European Union. Given that the exporting of copyrighted works, such as computer games, movies, television shows, books, and comic books, accounts for billions of dollars in revenues each year, there was ample reason to embrace this justification and support the CTEA. The downside, of course, is that the term extension keeps materials out of the public domain for an additional twenty years. Those persons and companies that wish to be able to reproduce the works, such as Eldred, would be disadvantaged.

So Eldred sued, asserting that Congress overstepped their power by enlarging the copyright term for those published works with existing copyrights since the Constitution permits authors to secure protection for “limited Times”, and the extension goes beyond the established “limited Times” for those existing copyright grants. Further, Eldred claimed the CTEA violated the First Amendment’s free speech guarantee.

The District Court, and then the Court of Appeals, rejected these challenges to the CTEA, and the Supreme Court in its ruling agreed. Specifically, the District Court found that the CTEA term, while longer than the prior term, is still limited, not perpetual, and therefore fit within Congress’ discretion. The District Court also held that “there are no First Amendment rights to use the copyrighted works of others.” The Court of Appeals affirmed the decision, finding nothing to suggest a “limited Time” could not be extended for another “limited Time.”

In its ruling, the Supreme Court found that Congress had three times in the past granted enlargements of the duration of copyright protection since the original copyright statute was enacted in 1790, providing a term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term. Each term expansions has applied to both existing and future works, including the CTEA. The Court also noted that extensions, such as the CTEA, reflect judgments of a kind typically made by Congress; specifically, extending the term of copyright in order to ensure American authors enjoyed the same term of protection in Europe enjoyed by European authors. In doing so, the extension provides incentive for authors to create and disseminate their works. As to the issue of free speech, the Court noted that the purpose of copyright is to promote the creation and publication of free expression.

So what impact does the decision have? In actuality, there is no impact on the current rights under the Copyright law, since the extension which was challenged became effective in 1998. But the issue of duration of copyright protection is an important one for all creators, including comic book creators. For example, had the extension been found unconstitutional, and the term returned to the prior length, a number of very famous works already would have entered the public domain, or would do so during the next decade or so. The most notable was Mickey Mouse, (celebrating his 75th birthday in 2003), but also Superman, Batman and Captain America, to name a few, would not be too far behind.

Let’s look at some questions that have been raised regarding the decision, and duration of protection:

1. What does this mean for works published before 1923?

Actually, all works which were scheduled to enter the public domain at the end of 1997 (i.e., works published during or prior to 1922) did still enter the public domain. As a result, any works first published in the United States prior to January 1, 1923 are in the public domain.

2. Are unpublished works treated differently?

Yes and no. Unpublished works created on or after January 1, 1978 are entitled to the same protection as all other works, i.e., life plus 70 years. However, unpublished works created prior to January 1, 1978, if still unpublished today, became part of the public domain on January 1, 2003 (if they had been published by December 31, 2002, the term would have been extended to December 31, 2047).

3. So what happens when the copyright expires - can anyone do, say, a Mickey Mouse cartoon?

The copyright laws provide the owners of copyright with a bundle of exclusive rights, including the right to copy a work, to create derivative works, and to sell copies of the works. Once the copyright expires, and the work enters the public domain, anyone can exercise any of these previously exclusive rights. So had the “Steamboat Willie” cartoon entered the public domain, anyone could make copies of the cartoon, sell the cartoon, show the cartoon at a film festival, etc., without permission and without having to pay Disney for the rights.

But things get a little tricky because Disney still owns the MICKEY MOUSE(R) trademark and, unlike copyrights, the trademark can be kept alive indefinitely as long as it is in use. So you might be able to create and sell copies of the “Steamboat Willie” cartoon, but you could be stopped from marketing the cartoon as “a MICKEY MOUSE(R) video”. Similarly, when Superman enters the public domain, anyone could reprint the public domain works, but could not create and sell new comic books under the title “SUPERMAN”(R), as that trademark is owned by AOL/Time Warner.

4. What about the original creators - is it fair that the publishers get an extra 20 years of profit from these works without compensating the creators?

Congress actually did consider this issue, and included specific statutes addressing the ability to terminate transfers of rights so that authors could recapture their rights for the extension of copyright. For example, let’s say a cartoonist sells his rights in a comic strip to a publisher, and the copyright, originally set to expire December 31, 2013, now is extended through 2033. Under the Copyright Law, the author (or his heirs) would be entitled to notify the publisher he is terminating the transfer of rights effective January 1, 2014, and would regain the copyright for the remaining 20 years of protection. The statute provides specific guidelines and requirements to accomplish the termination.